Citation Nr: 1803391 Decision Date: 01/18/18 Archive Date: 01/29/18 DOCKET NO. 17-17 972 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES Whether the reduction of rating for bilateral hearing loss from 10 percent to a noncompensable rating, effective November 1, 2016, was proper. REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD G. Johnson, Associate Counsel INTRODUCTION The Veteran served in the United States Navy from May 1965 to May 1969, and in the United States Naval Reserve from February 1979 to September 1983, with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in October 2017. A transcript of the hearing has been associated with the claims file. In July 2014, the Veteran filed a claim for an increased rating for his service connected bilateral hearing loss. That issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND The Veteran seeks restoration of a 10 percent disability rating for bilateral hearing loss. At an October 2017 Board hearing, the Veteran testified that his hearing had not improved, and he continued to experience difficulty hearing. The Veteran contends that there were inconsistencies with the speech discrimination scores of the August 2011 VA examination, the August 2015 VA examination, and the May 2017 examination. The Veteran testified that during the speech discrimination portion of the August 2011 VA examination, the Veteran listened to words on a tape through a hearing muff, and the Veteran only recited the words that he heard if he understood them. During the speech discrimination portion of the August 2015 VA examination, the Veteran was asked to answer questions to the best of his ability, and if he did not understand the word, he had to guess what he heard. During the speech discrimination portion of the May 2017 examination, the Veteran testified that the examiner read the words to the Veteran, and he was asked to guess the answers for the words that he did not fully understand. In light of the Veteran's contention that there are variations in the speech recognition scores of the examinations, an addendum opinion should be obtained. The examiner should provide an opinion as to whether the speech recognition scores were valid and correct as recorded in the examinations. If possible, the examiner should also provide an explanation for the variation in speech recognition scores. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-82 (1992). The Board notes that the AOJ did not make a specific finding that the Veteran's ability to function under the ordinary conditions of work and life had actually improved since his prior August 2011 VA examination. In any rating reduction case, it must be determined that an improvement in a disability has actually occurred with respect to a Veteran's ability to function under the ordinary conditions of life and work. Faust v. West, 13 Vet. App. 342 (2000); Brown v. Brown, 5 Vet. App. 413, 418 (1993). Therefore, on remand, the AOJ should make a determination regarding whether the Veteran's ability to function under the ordinary conditions of work and life had actually improved since his prior August 2011 VA examination. Accordingly, the case is REMANDED for the following action: 1. Obtain all outstanding private and VA records relating to treatment of the Veteran's bilateral hearing loss. 2. Obtain a VA addendum opinion to ascertain the nature, etiology, and current severity of the Veteran's bilateral hearing loss. The claims file should be made available to and be reviewed by the examiner in conjunction with the examination. The examiner should address whether the speech recognition results obtained in August 2015 and May 2017 are a reliable indicator of the Veteran's hearing acuity. The examiner should attempt to reconcile the speech recognition findings of August 2015 and May 2017 with the speech recognition findings from August 2011. The examiner should identify any possible reasons for the variation in the Veteran's speech recognition scores between the three examinations, based upon the examiner's expertise and experience. The examiner should consider and discuss the following: i. Veteran's testimony that during the speech discrimination portion of the August 2011 VA examination, the Veteran listened to words on a tape through a hearing muff, and the Veteran only recited the words that he heard if he understood them. ii. Veteran's testimony that during the speech discrimination portion of the August 2015 VA examination, the Veteran was asked to answer questions to the best of his ability, and if he did not understand the word, he had to guess what he heard. iii. Veteran's testimony that during the speech discrimination portion of the May 2017 examination, the examiner read the words to the Veteran, and the Veteran was asked to guess the answers for the words that he did not fully understand. iv. Whether from a review of the relevant records the Veteran's bilateral hearing loss had improved in or around August 2015, and, if so, whether this improvement reflected an improvement in his ability to function under ordinary conditions of life and work. The examiner should provide a complete rationale for all opinions expressed and conclusions reached. If the examiner finds that an opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or by the examiner (does not have the knowledge or training). 3. Readjudicate the issue of the propriety of the reduction of the rating for service-connected bilateral hearing loss. The AOJ must consider all new evidence associated with the record since March 2017, and should make a determination regarding whether the Veteran's ability to function under the ordinary conditions of work and life had actually improved since his prior August 2011 VA examination. If the issue remains denied, the Veteran and his representative should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period within which to respond thereto. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (Continued on the next page) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C. § 7252 (2012), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b).